State v Lazarus Dapira

On 14 September 2017 at Dzingire Village, Chief Muusha, Chimanimani, the accused, a Roscommon Estate Security guard, was instructed to accompany his senior Getrude Vesi and Constable Nedson Nthoro of the Zimbabwe Republic Police to arrest the deceased Benson Mazvierengwi (aged 34) for crimes committed at the estate. Accused and fellow guards were armed with shotguns and a pepper spray gun. Around 0100 hours on 14 September 2017, they arrived at the deceased's homestead. Without instructions from the police constable, the security guards entered a wooden cabin where the deceased was sleeping with his employee Chenjerai Mashava. When accused attempted to arrest deceased, the deceased protested and resisted arrest, questioning why they came at midnight instead of during the day. During the confrontation in the poorly lit cabin, the accused discharged his 12 Bore Optima Shotgun, shooting the deceased in the face/mouth with the bullet exiting through the left cheek. The deceased died on the spot from cerebral and cerebellar damage, skull base fracture, and maxillary fracture through bullet injury. The accused fled the scene and initially told Sgt Nthoro that he had fired the gun into the air when the deceased tried to disarm him.

• Whether the accused unlawfully caused the death of the deceased with intent to kill (murder with actual intent)
• Whether the accused unlawfully caused death while realizing the real risk or possibility that his conduct might cause death (murder with constructive intent)
• Whether the gun discharged accidentally during a tussle as claimed by the accused
• Whether the accused's conduct constituted negligent killing amounting to culpable homicide
• Whether the defence of self-defence under section 253 of the Criminal Law (Codification and Reform) Act applied

The accused was found not guilty of murder but guilty of culpable homicide. He was sentenced to 5 years imprisonment, of which 2 years were suspended for 5 years on condition that he is not convicted of an offence involving violence for which he is sentenced to imprisonment without the option of a fine within that period. Effective sentence: 3 years imprisonment.

A security guard who discharges a firearm in a dark cabin while attempting to arrest a suspect, without proper arresting powers and without taking adequate safety precautions, acts negligently and is guilty of culpable homicide where death results. The accused's failure to alert the police constable with proper arresting powers, combined with the reckless discharge of a cocked firearm in poor lighting conditions, constitutes criminal negligence sufficient for a conviction of culpable homicide. Where an accused claims accidental discharge but initially reported firing into the air, and fails to provide a credible explanation of the mechanics of the alleged accident, the court may reject the defence of accidental discharge as an afterthought.

The court observed that suspects must be arrested during the day where possible, and if necessary, a warrant of apprehension should be obtained in appropriate circumstances. The court noted that the use of guns should be employed sparingly to avoid loss of life. The court emphasized that the deceased was a suspect and not a convict at the time of his death, and that he left behind a toddler just a few weeks old who would grow up without a father. The court commented that while the accused committed the offence in the course of duty and was a first offender, death could have been avoided in the circumstances. The court also noted that it is natural and normal for a police officer to lose track of some facts due to lapse of time when handling thousands of cases, and that such inconsistencies are not necessarily fatal to the state's case where they are not material.

This case is significant in Zimbabwean criminal law as it addresses the proper use of firearms by security personnel when assisting police in effecting arrests. The case emphasizes that security guards do not have independent arresting powers and must defer to police officers. It illustrates the court's approach to distinguishing between murder (with actual or constructive intent) and culpable homicide based on the accused's mental state and the circumstances of the killing. The judgment reinforces that firearms should be used sparingly to avoid loss of life, and that suspects should generally be arrested during the day with proper procedures followed, including obtaining warrants where appropriate. The case also demonstrates the court's approach to assessing credibility of witnesses and rejecting defences of accidental discharge where the accused's version is inconsistent and improbable.